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but we do not consider that their decision to the vice of duplicity in that it contains would be of any importance, or in any wise two separate counts relating to the same state affect the proper judgment to be pronounced of facts, and that the court erred in not comin this case.
pelling plaintiff at defendant's request to The judgment of the district court is af- elect on which she would go to trial. As firmed.
stated in Spaulding v. Saltiel, 18 Colo. 86, 88, Affirmed.
31 Pac. 486, the practice of pleading a double statement of the case so as to meet the ex
igencies of the proofs is not, as a general (37 Colo. 423)
rule, permitted under the Code. The rule, CRIPPLE CREEK MINING CO. V. BRA- however, is not absolutely inflexible. In BANT.
Cramer v. Oppenstein, 16 Colo. 504, 27 Pac. (Supreme Court of Colorado. July 2, 1906. 716, it was said that it sometimes becomes Rehearing Denied Dec. 3, 1906.)
necessary, and therefore permissible, to du1. PLEADING - COMPLAINT - STATEMENT OF plicate statements for the same cause of acCAUSE OF ACTION – PLEADING DOUBLE tion where there is reasonable cause to beSTATEMENT. While, as a general rule, the practice of
lieve that plaintiff cannot safely go to trial pleading a double statement of the case so as upon a single statement, as where he cannot to meet the exigencies of the proofs is not per- reasonably be expected to anticipate the evimitted, the rule is not inflexible, and it is some
dence in advance of the trial. We think the times permissible to duplicate statements for the same cause of action where there is cause
case in hand comes under this exception to to believe that plaintiff cannot go safely to trial the general rule. Leonard V. Roberts, 20 on a single statement.
Colo. 88, 36 Pac. 880; Manders v. Craft, 3 [Ed. Note. For cases in point, see Cent. Dig. Colo. App. 236, 32 Pac. 836; Rucker v. Smeltvol. 39, Pleading, $ 114.]
ing & Refining Co., 18 Colo. App. 487, 72 2. JURY--EXAMINATION OF JURORS-CONNEC
Pac. 682; Vindicator Cons. G. M. Co. v. FirstTION WITH INSURANCE COMPANY. In an action for injuries to a servant em
brook (Colo.) 86 Pac. 313. ployed in a mine, it was proper for plaintiff's 2. At the close of her case in chief, plaincounsel to ask jurors on their voir dire if they tiff was allowed, over the objection of dewere interested in a certain guaranty insur
fendant, to amend her complaint by insertance company. 3. MASTER AND SERVANT-FELLOW SERVANTS
ing allegations as to the amount of wages -MINING.
her deceased husband was receiving at the One who had entire charge of the work of time of his death, and that defendant astimbering in a mine, and was in full control
sured him that the place where he received of the timbermen, was not a fellow servant with one working under him in the work of timbering.
his fatal injuries was safe. Possibly the Ed. Note.-For cases in point, see Cent. Dig.
usual formalities were not complied with by vol. 34, Master and Servant, $8 427-430.] plaintiff in making the request, but we do 4. SAME-INSTRUCTIONS.
not think, in the circumstances disclosed by Where, in an action for the death of a the record, that the court abused its discreminer, owing to a fall of rock, the evidence
tion in permitting the amendment to be made. was conflicting as to whether the work in which he was engaged was that of making safe a dan
Indeed, the court by its ruling promoted a gerous place, and plaintiff's evidence tended leading object of the Code, viz., to assist the to show that decedent first worked in the place parties in obtaining justice. on the day of the injury, and that the danger was not obvious, though there were some indica
3. The objections to rulings of the trial tions that it was not entirely safe, which had
court in admitting and excluding testimony been communicated by decedent to his overseer, and in curtailing, as alleged, the right of and that the latter had assured him that the
defendant to cross-examine plaintiff's witplace was safe, it was proper to instruct that the doctrine as to a safe place was applicable
nesses, we do not find to be well taken. Posto the case made by plaintiff's evidence.
sibly technical errors may have been comi
mitted in some particulars, but they were not Appeal from District Court, Teller Coun
of serious consequence, and clearly not prejty; Louis W. Cunningham, Judge.
udicial, and some of them were cured by subAction by Minnie V. Brabant against the
sequent rulings. For these reasons, we do Cripple Creek Mining Company. From a
not notice them in detail, and for the addijudgment in favor of plaintiff, defendant
tional reason that they fall within the range appeals. Affirmed.
of the legal discretion of the trial judge Wolcott, Vaile & Waterman, H. H. Dun- which was not abused. ham (Wm. W. Field, of counsel), for appel- 4. In the examination of some of the jurors lant. Stimson & Smith and James J. Mc- on voir dire plaintiff's counsel asked them if Feely, for appellee.
they were interested in a certain guaranty
insurance company. The defendant vigorousCAMPBELL, J. Action by Minnie V. Bra- ly asserts that this constituted prejudicial bant, widow of Fred Brabant, deceased, to error inasmuch as the attention of the jurecover damages for personal injuries re- rors was unnecessarily directed to the supsulting in her husband's death through de- posed fact that an insurance company, and fendant's negligence. From the judgment not the defendant, was the real party in inin plaintiff's favor, defendant appeals.
terest, since it is matter of common notoriety 1. It is urged that the complaint is subject that mining companies usually insure against such accidents. We do not find from the, being the case, the jury should have been inrecord that there was any intention by plain- structed, as matter of law, that the doctrine tiff's counsel to make prominent this connec- of safe place did not apply, and that the tion of the insurance company with the case, defendant had voluntarily assumed the risk but are of opinion that he might thus obtain of his employment, and, as the evidence the information as a guide for the exercise showed that he was as well informed of of a challenge for cause or peremptorily. the dangerous character of the place in which This point was so ruled by this court in the he was working as the appellant itself, a nonFirstbrook Case, supra, and tlie case in band suit should have been granted. The difficulty comes within that decision.
with this contention is that the evidence is 5. The appellant's assignments of error- seriously in conflict as to all these particulars. that the evidence fails to show negligence It is true, as appellant says, that the deceased of defendant, and that the proofs are con- was employed as a timberman, and some of clusive that plaintiff's husband assumed the the evidence tended to show that the work risk of the danger incurred and was guilty of which he was prosecuting at the time of the ('ontributory negligence, and that the doctrine accident was, at least in some measure, for of safe place does not apply—are best con- the purpose of making safe a dangerous place. sidered in connection with the objections Upon the other hand, there was evidence just which it makes to the charge to the jury. as positive that placing stulls in the stopa To an understanding of these objections, the was for the purpose of a foundation upon issues should be stated and a summary of the which to place lagging for a floor or supevidence given.
port upon which workmen might stand in The two principal specifications of negli- | pushing on the stope_which was intended to gence averred in the complaint are that de- be as permanent as the stope itself—and fendant violated its duty to plaintiff's hus- as a receptacle for rock and earth which was band in that it failed to provide a reasonably broken down in the prosecution of the work safe place for him to work, and that, with- of stoping out ore. In other words, there was out fault upon his part, he obeyed the com- evidence to sustain both the theory and claim mands of defendant's representative to work of the plaintiff and that of the defendantin a dangerous place, which was known to evidence tending to establish a case analogous be so by defendant, and unknown to, and to the class of cases well represented by could not have been ascertained by, him in City of Greeley v. Foster, 32 Colo. 292, 75 the exercise of reasonable care. The defenses Pac. 351; Finalyson v. Utica M. & J. Co., pleaded were a denial by the defendant of 67 Fed. 507, 14 C. C. A. 492; C., O. & I. Co. negligence on its part, and the affirmative V. Lamb, 6 Colo. App. 255, 40 Pac. 251 ; pleas of assumption of risk and contributory Sampson M. & J. Co. v. Schaad, 15 Colo. 197, negligence. The court submitted the case 25 Pac. 89, in which the “safe place" doctrine to the jury upon the theory that the doctrine is held not to apply; and also that class of of safe place was applicable to some of the cases represented by Faulkner v. Mammoth l'acts of the case-that is, if they believed M. Co., 23 Utah, 437, 66 Pac. 799, in which the evidence of plaintiff's witnesses on that it is pertinent. point-and that if, in this respect, the de- An examination of the instructions shows fendant violated its duty, plaintiff was en- that the court fully and properly instructed titled to recover, unless the jury found that the jury upon both of these theories, and the risk was assumed by plaintiff's husband, certainly those given upon the supposition or that his own negligence contributed to the that defendant's evidence is true were as injury. On the other hand, the jury were
favorable as could be asked. Indeed, deproperly instructed that this "safe place" fendant's objections to the charge given are rule did not apply to such a case as that not that the separate instructions are wrong, made by defendant's evidence. The appel- if the facts to which they are legally aplant maintains that the doctrine of safe plicable were present, but that they are not place is not applicable to the case as made germane to the evidence actually produced in because the place of work was temporary the case, and therefore constitute prejudicial and transient in character, and plaintiff's error. But, as we have seen, the evidence husband was employed to do, and was en- was in hopeless conflict, and the instructions gaged in, the very work of making safe for of the court bore upon the theories of both others to work in, a temporary place ob- parties to the case in support of which there viously dangerous, and known to be so by was some evidence. It is unquestionable that him. Appellant says that such was the the evidence is in irreconcilable conflict, and nature of deceased's service, that he was we might, for our present purpose, even go employed as a timberman in defendant's mine, further and suggest that the jury might have and, at the time of the injury, was engaged found abundant reason for a verdict in acin the work of placing in a stope stulls for cordance with the evidence of defendant. the very purpose of making its walls safe and The difficulty with its case, however, is that preventing the rock and earth thereof from the jury, under proper instructions, rejected falling. The learned counsel for appellant its evidence and saw fit to believe the testi. unqualifiedly assert that the evidence is un- mony of plaintiff's witnesses. contradicted to this effect, and that, such The contention that whatever may have peen the orders of defendant's foreman to de- CAMPBELL, J. This action for the receased to work in this place, and irrespective covery of damages for personal injuries of his assurance that it was safe, is im- caused by defendant's negligence was submitmaterial because the foreman was only a ted to the same jury that trial the case of fellow servant, we do not think is well taken. Cripple Creek M. Co. v. Brabant, 87 Pac. The foreman's testimony was that he had 794. The plaintiff's injury was inflicted at entire charge, and was overseer, of the work the same time, the issues in the two actions of timbering in the mine, and was in full con- were substantially the same, and the evitrol of the timbermen. We are of opinion dence identical. The same questions of fact that this was a distinct department of work, and law are involved in the two cases. The and therein such overseer was the representa- ruling there is controlling here, and accordtive of thie defendant itself.
ingly the judgment in this case is aflirmed. The testimony is so conflicting as to the Affirmed. condition of the stope where the injury Occurred, as to its being safe or dangerous, and GABBERT, C. J., and STEELE, J., concur. as to deceased's knowledge of it, that no use ful purpose would be subserved by considering
(38 Colo. 23) it in detail. We merely remark that, while
PERRY et al. v. PEOPLE. there was positive testimony that the place was obviously known to be dangerous, and
(Supreme Court of Colorado. July 2, 1906.
Rehearing Denied Dec. 3, 1906.) that deceased, an experienced miner, was as
1. CRIMINAL LAW---PROOF OF CORPORATE Exmuch aware of it as was defendant itself,
ISTENCE-SECONDARY EVIDENCE. · and voluntarily entered upon the work and On a trial for larceny, it is not necessary assumed the risk after being warned of the to produce the articles of incorporation to prove danger; on the other hand, there is testimony
the corporate existence of the corporation from
which the goods are alleged to have been stolen, that the deceased first saw and worked in
but the incorporation may be proved by reputhis place on the day of the injury, that the tation. danger was not obvious, although there were [Ed. Note-For cases in point, see Cent. Dig. some indications that it was not entirely safe
vol. 14, Criminal Law, $ 884.] which had been communicated by deceased
2. SAME-SUFFICIENCY OF EVIDENCE-REVIEW. to defendant's overseer, and the latter, after
Where, on a trial for the larceny of the
goods of an alleged corporation, the question of a personal examination which he then made the insufficiency of the proof of the existence and from previous knowledge and inspection of the corporation was not raised by motion to of the stope, and with fuller and more com
discharge at the close of the people's case, or
by motions for a new trial or in arrest, the plete knowledge of the character of the
question cannot be considered by the Supreme ground in which it was being run, assured Court. deceased that the place was perfectly safe, in [Ed. Note. For cases in point, see Cent. Dig. relying upon which the latter was justified,
vol. 15, Criminal Law, § 2080.] and that there was no danger of the falling 3. LARCENY-IDENTIFICATION OF Goods STOLof rock or earth from the walls of the stope,
EN-EVIDENCE-QUESTION FOR JURY.
Evidence, on a trial for larceny of the from which later the particular rock fell goods of a corporation, examined, and held that which crushed him. In this state of the the question whether the goods found at or near evidence, we do not see how the court could the home of accused were identified as the goods have done otherwise than charge, as it did,
of the corporation was for the jury.
4. SAME-ADMISSIBILITY. that the doctrine of safe place was applicable Where, on a trial for larceny, it was shown to the case as made by plaintiff's witnesses. that certain goods answered the general descrip
Perceiving no prejudicial error in the rec- tion of the goods stolen, it was proper to perord, the judgment is affirmed.
init a witness to state that he found the goods
in the trunk of accused. Affirmed.
[E. Wote. For cases in point, see Cent. Dig.
vol. 32, Larceny, § 144.] GABBERT, C. J., and STEELE, J., concur.
5. CRIMINAL LAW-EVIDENCE-REBUTTAL.
Where, on a trial for larceny, accused un
dertook to explain his possession of a gun found (37 Colo. 431)
with the goods alleged to have been stolen, and
testified that the gun was his own, and that CRIPPLE CREEK MINING CO. F. ESTEB. he had owned it for four years, it was competent
for the state to prove in rebuttal that the gun (Supreme Court of Colorado. July 2, 1996.) Rehearing Denied Dec. 3, 1906.)
had been stolen a few weeks before the arrest
of accused. Appeal from District Court, Teller County; 6. SAME — ADMISSION OF EVIDENCE — PREJULouis W. Cunningham, Judge.
On a trial for larceny, the admission of the Action by Paul W. Esteb against the
statement of a witness that he went to the home Cripple Creek Mining Company. From a of accused, and that before he came there he judgment for plaintiff, defendant appeals. came in contact with other persons who were Affirmed.
on their way in search of goods supposed to be
at the home of accused that should not have Wolcott, Vaile & Waterman and H. H. been there, was not prejudicial to accused; the Dunham (Wm. W. Field, of counsel), for ap
statement being so indefinite that it could not pellant. Stimson & Smith and James J. Mc
be said that the witness was permitted to state
that accused was thought to have been guilty Feely, for appellee.
of stealing other goods.
7. SAME EVIDENCE-INSTRUCTIONS.
the above-entitled cause, do find the defendWhere, on a trial for larceny, the court ad
ants guilty as charged in the inforination. mitted in evidence only the goods positively
We further find the value of the goods and identified and described in the information, and instructed the jury properly as to the goods al
property taken to be the sum of seventy dolleged to have been stolen and exhibited in evi- lars. W. W. Wilson, Foreman." After the dence, accused could not complain that the
trial, and before the filing of the motion for court did not limit the goods exhibited in evi
a new trial, the defendant Andrew Perry dence to the goods described in the information and alleged to have been stolen, but allowed made an affidavit in which he said that he the jury to go outside of the issues.
alone coinmitted the burglary and larceny 8. SAME--REASONABLE DOUBT-INSTRICTIONS.
complaineil of. The writ of error was issued An instruction, on the subjext of reasonable
on behalf of but three of the defendants. doubt, that if the jury believe as men their oath imposes on them no obligation to doubt where no The second assignment of error relates to doubt would exist if no oath had been adminis- the reception of testimony over defendants' tered, was proper.
ohjection. The witness W. F. White was TEd. Yote.-For cases in point, see Cent. Dig.
asked if he was president and manager of vol. 14, Criminal Law, $$ 1904–1922.)
the W. F. White Mercantile Company on the 9. SAME-VERDICT-SUFFICIENCY.
21st day of November, 1904. The objection An information charged burglary and larceny. The jury found accused guilty as char- to this question was that "it does not call ged and found the value of the goods stolen. for the best evidence, and for the reason that ILold that, as the offenses were of the same there is no evidence showing that there is grade, the verdict was sufficient as a verdict tinding accused guilty of larceny.
such a firm or corporation as the W. F. White [Ed. Wote.For cases in point, see Cent. Dig.
Mercantile Company.” The following was vol. 14, Criminal Law, $ 2099.]
propounded to the witness Cropsey: «Q. I
" 10. SAME - NEW TRIAL - NEWLY DISCOVERED will ask you if on November 21, 1904, EVIDEXCE.
your company was dcing business in this Several persons were tried fo: burglary and
county and state as the W. F. White Mercanlarceny. The jury found them guilty of larceny. One of them, in support of a motion for
tile Company?" This was objected to benew trial in behalf of the others, made an affi- cause not the best evidence. The objection davit in which he confessed to the burglary to this testimony was properly overruled. In and the larceny, and a verred that he committed
criminal cases it is not necessary to produce the crimes without the knowledge of the others. The others filed affidavits alleging that they
the articles of incorporation for the purpose had no knowledge of the commission of the of- of proving the corporate existence of a confenses, and did not know until the trial that cern from which goods are alleged to have their codefendant was guilty. Weld, that the
been stolen, but the incorporation may be motion was properly denied because it could not be said that the new evidence ought to produce proved by reputation. It is now claimed that a different result.
there was no proof of the existence of the [Ed. Note.For cases in point, see Cent. Dig. W. F. White Mercantile Company, a vol. 15, Criminal Law, $ 2336.]
poration, alleged in the information as the Error to District Court, Mesa County; concern from which the goods were stolen, Theron Stevens, Judge.
and that the defendants were entitled to a Warren Perry and others were convicted new trial because of such failure of proof. of larceny, and they bring error. Affirmed. If the question had been presented to the
Carnahan & Van Hoorebeke, for plaintiffs trial court and an adverse ruling given, we in error. N. C. Miller and W. R. Ramsey,
should probably direct a new trial; but nofor the People.
where was the point made that it was not
shown that the W. F. White Mercantile ComSTEELE, J. Separate informations were pany was a corporation. Advantage of this filed ilgainst each of the defendants; one might have been taken by metion to discharging him with having feloniously and charge at the close of the people's case, by burglariously broken and entered the shop motion for a new trial, or by motion in arand storehouse of the W. F. White Mercan- rest of judgment; but, as the question was tile Company, a corporation, etc., with intent not presented, we cannot consider it here. to commit larceny, and another charging him Subdivision 5 of plaintiffs' second assignwith having, on the same day, feloniously ment is as follows: "In admitting testimony stolen, taken, and carried away various ar- of the witness Cropsey as to the existence of ticles of personal property, "of the goods, the corporation of the W. F. White Mercanchattels and personal property of the W. F. tile Company, it not being the best evidence. White Mercantile Company, a corporation From this it would seem that counsel was of under the laws of the state of Colorado." opinion that the existence of the corporation The cases were consolidated for trial, and had been established by secondary evidence. the defendants were convicted and senten- We are of opinion that the testimony did not ced to a term in the penitentiary.
show the existence of a corporation or of : The verdict, upon which the conviction concern doing business as a corporation, as rewas had, is as follows: "State of Colorado, quired by the decision in Miller v. People, County of Mesa-ss.: In the District Court. 13 Colo. 168, 21 Pac. 1025; but, as the objecThe People of the State of Colorado v. George tion to this testimony was properly overrulPerry, Warren Perry, Ben Perry, and An- ed, we must hold that there is no nerit in drew Perry, Defendants. We, the jury in plaintiffs' contention.
Witnesses had testified to having made a ing to the White Mercantile Company, but search of the premises where the defendants were not identified as belonging to the comresided, and to having found two overcoats pany. The defendants undertook in defense in a creek near their house. A bundle of to show how they obtained possession of the new socks and a box of cartridges were found goods. The state introduced witnesses in rein a trunk belonging to one of the defend- buttal to contradict the defendants' witants, and several rifles were found in a seam- nesses. It is claimed that the testimony less sack buried in a pile of stone near the proved another larceny. We are of opinion house. The rifles were positively identified that the testimony was competent and releas the property of the W. F. White Mercan- vant, even though it did prove another lartile Company. One of the persons connected ceny. One of the defendants testified that with the store testified with reference to the one of the guns found on the ranch was overcoats: "This overcoat, marked People's owned by him, that he had owned it for Exhibit J,' would be pretty hard to identify. four years, that the man of whom he bought It is one of the stock of overcoats I mean it had gone to Idaho. In rebuttal, a witness to say that it is one of a stock from which was permitted to testify that his store was we missed one that morning. The manufac- | burglarized during the month of November, turer's tag has been torn off. It does not a few weeks before the defendants were arlook to me that it is an overccat that has rested, and that the gun was taken from his been worn.
* * * This overcoat, marked store at that time. This testimony we regard *Exhibit K'-we missed an overcoat of that as entirely proper in rebuttal. same pattern from our store that morning. One of the witnesses stated: “I went to I could not say positively that that is our the Perry place on the morning of the 29th coat, because the tags are torn off. I have | by request, and before I came there I came examined it carefully for tags." Another in contact with probably a dozen other parwitness, when shown the overcoats, said, ties that were on their way, and we proceedwhen asked if they belonged to the store: ed up Mesa Creek canon and began to search "I believe they came from there." This, wo for goods, hides, heads, feet, etc., of animals think. was a sufficient identification to have that were supposed to be there and that submitted the question to the jury. One of should not have been there." Counsel for the witnesses said: “My attention was called defendants objected to the latter part of this to a place that day where the overcoats were statement, and moved that it be stricken, and found." The defendants' counsel objected, the objection and motion were overruled. "for the reason that no overcoats are char- The witness was told by the district attorved in the information." The district at- ney to state "what you did, without retorney then said: "I want to show what the ferring to what anybody said," and in redefendants did. I am not going to identify sponse he made the above statement. Counthe overcoats." The objection was then over- sel did not state what his objection was, nor ruled. The objection was properly overruled. state, except in a general way, what portion The information charged that two overcoats he desired stricken, and the ruling of the had been stolen by the defendants. More- court might be sustained upon the ground over, they were identified with sufficient cer- that proper objection was not made; but we tainty to have submitted the question of their shall sustain the ruling of the court upon the ownership to the jury. The testimony show- ground that, in our opinion, it was not prejued that certain articles were missed from the dicial error to permit the statement to stand. store of the White Mercantile Company. The statement is so indefinite that we are Many articles of the same kind were found unable to say that the witness was permitted concealed on or near the ranch of the de- to state over objection that the defendants fendants. Certain of the articles were posi. were thought to have been guilty of cattle tirely identified as being the property of the stealing. mercantile company, other articles could not Instructions Nos. 3, 4, and 6 were objected be positively identified. We think it was for to, and when given exceptions were'duly the jury to determine from all the facts and saved. The objection to instruction No. 3 circumstances whether the property found on is that the court did not "limit the goods exthe ranch of the defendants had been stolen. hibited in evidence to the goods alleged and
The defendants objected to testimony re- described in the information and alleged to garding socks found in the trunk of one of have been taken and stolen, and therefore the defendants because the socks had not allows the jury to go outside of the issues been identified. We think the objection was involved in this case.” · The objection is not properly overruled. The socks were found in well taken. The court admitted in evidence a defendant's trunk. They answered the gen- only those goods positively identified and eral description of socks taken, and it was described in the information, and instructed proper for the witness to state where they the jury properly as to the "goods alleged to were found. In one or two instances wit- have been stolen and exhibited in evidence." nesses were permitted to testify in rebuttal In instruction No. 4 the following sentence is concerning certain articles found at the time found: "If you believe as men your oath imsearch was made of
of defendants' ranch. poses upon you no obligation to doubt where These articles were found with goods belong- no doubt would exist if no oath had been ad